DHHS to face federal trial in November over Choices for Independence program, judge announces

A federal judge is set to weigh in on whether New Hampshire’s at-home care program for the elderly and people with physical disabilities is so lackluster it violates federal laws meant to protect people from institutionalization.

On Wednesday, Judge Paul Barbadoro of the U.S. District Court of New Hampshire scheduled a trial to begin Nov. 9 in what has been a yearslong legal battle between the New Hampshire Department of Health and Human Services and a coalition of advocacy nonprofits and law firms. The judge blocked out 11 non-consecutive days for the trial.

In 2021, a group of program participants represented by the AARP Foundation, the Disability Rights Center-NH, New Hampshire Legal Assistance, and Nixon Peabody sued DHHS over its Choices for Independence program. The Medicaid-funded program aims to provide the kind of in-home care that allows people with disabilities and older adults to stay in their own home rather than going to a nursing home. 

However, the nonprofits argue that the state’s severe lack of investment risks forcing participants into nursing homes anyway. This, they argue, violates the 1990 Americans with Disabilities Act and Section 504 of the 1973 Rehabilitation Act, two federal laws protecting people from institutionalization. They also point out that it costs roughly three times more to send someone to a nursing home than to provide at-home care. In 2023, Barbadoro certified it as a class-action lawsuit, opening the door for all CFI participants to join the suit.

DHHS has hired Washington, D.C., law firm Brown & Peisch to represent them. The attorneys have argued the plaintiffs are asking the court to go beyond what Congress mandated in the ADA and Rehabilitation Act. They’ve argued during previous hearings the court can penalize DHHS only when people are actually institutionalized or “on the precipice” of institutionalization — though Barbadoro cast doubt on the vagueness of their “precipice” standard. Still, the state has acknowledged that a staffing shortage has hindered the ability to send aides to participants’ homes.

In previous hearings, Barbadoro has urged the plaintiffs to be more specific in what they want the court to order DHHS to do. He’s warned that any order he issues will be narrow in scope. The plaintiffs say they want the court to force DHHS to conduct a thorough review of the program, including whether the rates the state pays providers are allowing them to hire enough aides, and what it would take to meet the needs of all the program’s participants.